Eric Garner. Michael Brown. Tamir Rice. Walter Scott. Alton Sterling. Sandra Bland. Marcus David Peters. Breonna Taylor. Philando Castile. Stephon Clark. George Floyd.
These are the names of black Americans murdered by police officers since 2014. George Floyd’s brutal execution in Minneapolis has stirred a movement across this country to demand justice. Moreover, these murders have forced us to take a hard look at ourselves as a nation and individuals. For no issue is this more true and long overdue than our approach toward law enforcement and its commonly accepted practices, governing the manner in which police use force in their interactions with civilians in the course of duty.
As many of us know and have known through personal experiences, these approaches disproportionately affect black and brown citizens in a negative way and, more frequently, in a deadly way. The time is now. We must re-evaluate our approach and change our outlook so that no other black man has to plead for his mother or use his last breath to say “I can’t breathe.”
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Time and time again, violence against individuals at the hands of the police often goes unpunished as “law and order” prosecutors repeatedly decline to pursue accountability through criminal actions. Moreover, the victims’ families are left uncompensated due to an overly broad and biased legal shield known as sovereign immunity.
Simply put, this principle absolves localities and its employees of liability for the actions of law enforcement. Specifically, a locality is immune from liability for a police officer’s negligence and/or intentional wrongful acts or an infringement of a right in the performance of his duties. Because a municipality acts in its governmental capacity in maintaining a police force, a municipality also is immune from liability for its negligent retention of a police officer.
But even if a municipality and a police officer were no longer immune from liability, the law as it currently stands prevents a plaintiff from holding a municipality responsible for an officer’s intentional assault.
Additionally, the Supreme Court of Virginia recently decreed that an employer does not owe a duty to third persons to control its employee. In this example, a municipality doesn’t owe a duty to civilians (or their families) if a police officer harms them in the line of duty.
Nor can a city be held directly liable for its failure to control its police officer whom the city knew or should have known presented a foreseeable danger to the public. Ultimately, localities are held harmless unless a victim or family can prove that the locality negligently retained the officer.
This, in our view, is highly problematic and forecloses almost any semblance of restorative justice to the families of those unnecessarily killed or injured. If we are going to be serious about our approach to reforming police interactions with citizens, our system must be changed to allow for victims to recover financial compensation in these situations, plain and simple.
To that end, we will be introducing legislation in the General Assembly that will create a duty for employers to supervise, train and control their employees to prevent harm to third persons when the harm to a third person is reasonably foreseeable; apply vicarious liability to hold employers responsible for any harm caused by their employees when their actions arise out of an activity that was within the employee’s scope of employment, ordinary course of business or incident to their employment; and exempt localities’ sovereign immunity protection in actions brought pursuant to this legislation.
These policy changes are tangible and necessary in an environment where we must seek to make our justice system equitable and fair. We must provide families a way to seek justice when other avenues fail them and those lacking prosecutorial courage stand down.
Coupled with legislation that requires proper training in de-escalation and the appropriate use of force in the line of duty, our proposals would form a backstop against preventing victims from a just recovery. While money cannot bring those slain back, it is but one step we can take toward supporting a victim or their families in the wake of an unnecessary use of force.
The names listed above cannot die in vain. This is our moment to effect real change in our approaches to justice in Virginia and we cannot let it slip away.
Jeffrey M. Bourne represents the 71st District in the Virginia House of Delegates. Contact him at: DelJBourne@house.virginia.gov
Jay Jones represents the 89th District in the Virginia House of Delegates. Contact him at: DelJJones@house.virginia.gov